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On Proportionality – Part I

Denunciations of Israel’s invasion of Gaza have been widespread, and some of them have used language that verges on the hysterical, using terms like "genocide" (as Mahmoud Abbas did on January 6th in calling on the UN to intervene). The … Read More

Denunciations of Israel’s invasion of Gaza have been widespread, and some of them have used language that verges on the hysterical, using terms like "genocide" (as Mahmoud Abbas did on January 6th in calling on the UN to intervene). The often-heard claim that the IDF is deliberately trying to kill as many civilians as possible is simply ludicrous. The death toll among civilians – presently approximately 450 and climbing – is horrendous, but Gulbuddin Hekmatyar’s rocket and artillery attacks on Kabul killed tens of thousands of people. Those are the kind of numbers that one can produce by the use of artillery fire into a city if one really wants to.

One word that is frequently heard is "proportionality." "Israel has a right to defend itself" says one side. "Not at the cost of so many civilian deaths," says the other, "and besides, Palestinians in Gaza have rights of self-defense, too." "No cost is too high to prevent rockets landing in Tel Aviv" comes the rejoinder. How do we evaluate these claims?

The traditional approach to these kinds of questions is found in "Just War" theory, a tradition with roots as far back as Aquinas, early modern roots in the writings of Grotius and Burlamaqui, and modern treatments by (among many others) Michael Walzer and Judith Thomson. Currently there is a wave of literature urging a revision in categories in response to the phenomena of asymmetrical warfare, the proliferation of non-state actors, and long-standing low-intensity conflicts, all of which produce what Wittgenstein called "category confusion" when one tries to apply simple principles of distinction between combatants and non-combatants, or even peace and war. Consider Article 51 of the UN Charter: it guarantees a right of self-defense in the event of armed attack, but speaks only of a situation in which one nation state launches an attack against another.

As a result, these current writers tend to treat the classical categories of just war theory with some suspicion; Michael Walzer himself cast doubt on the adequacy of traditional categories in the January 8 New Republic. Walzer pointed out that one traditional test of proportionality — the one most often cited by Israel’s supporters — looks ahead to the risks of future harm; this is the argument that justifies harm to prevent greater harm. "Before the six months of cease-fire (when the fire never ceased), Hamas had only primitive and home-made rockets . . . Another six months of the same kind of cease-fire, which is what many nations at the UN demanded, and Hamas would have rockets capable of hitting Tel Aviv. And this is an organization explicitly committed to the destruction of Israel. How many civilian casualties are ‘not disproportionate to’ the value of avoiding the rocketing of Tel Aviv? . . . The answer, again, is too many."

What Walzer is pointing to is the inherent boundlessness of an argument for proportionality that includes the element of preemption. Call it the Cheney Mushroom Cloud Theory of Proportionality: if there is the possibility of a future risk of attack, a proportional preemptive operation is one that causes no more harm than the hypothetical future attack might have caused in a worst-case scenario. Presumably for that reason, formulations of the proportionality principle in international law have eschewed the classical arguments in favor of an evaluation of means and ends. The Hague Convention of 1907 (Section 23c) prohibits causing "unnecessary suffering." The Geneva Convention of 1977 creates a more specific test: Article 51(5) defines prohibited "indiscriminate attacks" to include the following: "a) An attack by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village, or other area containing a similar concentration of civilians or civilian objects; b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."

So there are at least three distinct ways of thinking about proportionality (none of which, incidentally, is usefully analogized to an individual’s right of self-defense); the test of "unnecessary" collateral damage; the test of imaginable future harm the risk of which might be reduced; and the Article 51(5) test that balances anticipated military gains against civilian cost and imposes what might be called a principle of precision in the design of military operations. Each of these tests is applied in two distinct ways: jus ad bellum, the justification for initiating military action which essentially becomes a test of what triggers a right of self-defense; and jus in bello, the test of proportionality applied to the choice of means employed in a military operation. These are separate tests. Unprovoked – or insufficiently provoked – military attacks are war crimes no less than excessive civilian casualties. Conversely, inflicting excessive civilian casualties is not excused by the claim "they started it." I have already suggested that analogies to personal conflicts are weak here (what is the equivalent of a duty to retreat, for example? "We have no other homeland" said an Israeli spokesperson, as though the people in Gaza all maintain multiple addresses and just happened to be vacationing there when Operation Cast Lead began). But the distinction between jus ad bellum and jus in bello is not hard to understand even by a weak analogy: while it is a crime for someone to throw a rock through my window, that does not justify my spraying the street with automatic weapons fire.

How do both Israel and Hamas come out looking if we apply these kinds of tests to their actions? To try to make sense of these arguments, I propose that we divide the period of Israel-Hamas interactions into two distinct periods: 1) prior to Hamas taking power in Gaza; and 2) subsequent to Hamas’ accession to power. In the remainder of this post I will discuss the first period; the second period will be examined in Part II. Many of the descriptions of events are contested, to be sure, but that is always the case. (It is almost impossible to make sense of any case without a timeline of events: there are several available on the Web that may be useful – you can find a few here, here, and here. (Please note: each of these timelines is selective, and in each case the selections reflect the ideological biases of the authors.) 1) Prior to Hamas’ election. Since its creation in the late 1980s, Hamas engaged in a wide range of violent attacks against Israeli civilians, most notoriously by means of suicide bombings but also in the form of rocket and other attacks. Israel responded with various measures, including a program of targeted assassinations of key Hamas figures. Since these were carried out by means of air strikes, there were frequently civilian casualties involved.

As far as jus ad bellum (the claim of self-defense) is concerned, it goes without saying that any of the actions carried out by Hamas, if performed by a government, would obviously be an act of war, and justify a military response (for example, under Article 51 of the UN Charter). But there are problems with this simple conclusion. The first potential problem is that in many instances Hamas claimed that its suicide bombings and other attacks were carried out in retaliation for Israeli assassinations of its leaders. The point was not lost on Israeli commentators: journalists like Alex Fishman and Danny Rosenblum and politicians like Yossi Beilin pointed out over and over that each assassination that Israel carried out was followed by a suicide bombing. In November 2001, following the assassination of Mahmous Abu Hanoud, Fishman-a security columnist who is understood to articulate the voice of the military establishment – wrote "Whoever gave a green light to this act of liquidation knew full well that he is thereby shattering in one blow the gentleman’s agreement between Hamas and the Palestinian Authority; under that agreement, Hamas was to avoid in the near future suicide bombings inside the Green Line." (Yediot Achronot, November 25, 2001.) Sure enough, one week later there were suicide bombing attacks in Jerusalem and Haifa. Similarly, in March 2004 Sheikh Ahmed Yassin was killed by an aerial rocket attack that also killed two of his children and six passers-by; his successor Abdul Al-Aziz Rantisi was killed in a similar rocket attack in April. In September, Hamas responded with a double suicide-bombing attack in Beer Sheva. Are these retaliatory suicide bombings different in kind from those that had come earlier?

Israel, of course, will point out that whatever "gentlemen’s agreement" (or, later, more formal truce agreements) Hamas might enter into, prior to that time it had launched murderous attacks during the Second Intifadah like the discotheque bombing in Tel Aviv in June 2001, which does not appear to have been carried out by Hamas but was widely praised by Hamas’ leadership. Hamas proposed that those were acts "defending" the Palestinian people, and that the failure to distinguish between combatants and non-combatants is based on the same arguments that Israel has used for decades to justify attacks on civilian infrastructure and political authorities.

As a matter of jus ad bellum, Hamas’ claim of "defending" the Palestinian people as a nation is incoherent for many reasons, starting with the fact that Hamas was not the representative of a nation embodied in a political state. As a matter of jus in belli, Hamas’ deployment of suicide bombers to attack civilian targets is obviously a criminal act of the first order.

But what about Israel’s response to those attacks, its program of assassinations using means that necessarily resulted in significant numbers of civilian casualties? Keep in mind that there is no tit-for-tat theory of proportionality; the fire-bombing of Dresden cannot be justified by Nazi massacres elsewhere. The evaluation of Israel’s actions under a standard of proportionality stands on its own.

Here’s where we get that category confusion, again. When a state acts, it acts as a collective, and the consequences of its actions may be visited on the collectivity without distinguishing individual levels of culpability. When a non-state actor acts, we usually think of that actor as an individual, or as the members of a group. It is a form of the supposed conundrum that was being floated in American political discussions after September 11th: neoconservatives accused liberals and traditionalists of thinking in police terms when they should have been thinking in military terms. If Hamas is not a government, then individual culpability is not affected by a collective authority’s policies, and the apprehension of guilty individuals by force is an appropriate police measure. If Hamas is a government, then during a period of belligerency the use of military force against its forces is appropriate.

As a matter of jus ad bellum, Israel’s assassinations do not seem to fit either model. Hamas leaders like Yassin were not killed in the act of committing an attack, they were killed either as punishment for past attacks (essentially a police justification) or to prevent predicted future attacks (a military justification). As a matter of jus in belli, the civilian death toll involved in firing rockets from jets into a city block outside a mosque is both predictable and intolerable. A policeman who kills the children of murders is itself an act of murder and targeting the children of enemy combatants is a war crime. On the other hand, under the calculus of Article 51(5) causing the deaths of those same children for a sufficient concrete military gain may be justifiable. It remains the case that assassination widely regarded as wrong as a tactic in wars between states – partly because it makes cease-fires very difficult to maintain – but the real point is the necessity of first establishing the appropriateness of applying the military logic. Hamas was not a government ruling a territory within which passers-by on the street can be assumed to be part of a mutually culpable collective; this is the source of the category confusion.

In the pre-election period, then, it seems unassailable that Hamas’ acts of terrorism were not justified under a theory of collective self-defense or preemption, and were not proportional to any cognizable claim of grievance. Israel’s reactions to Hamas’ attacks were defensive, and thus justifiable in the first instance as a matter of jus ad bellum; whether the choice of mean violated principles of proportionality is a complicated question. To find Israel’s arguments persuasive here requires reshaping the categories of the discussion, which raises the question: what does that same reshaping of categories do to our assessment of Hamas’ terrorist attacks?